Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion *

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10438

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

GREGORY JOY, also known as Greg Joy,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:06-CR-23-7

USDC No. 5:07-CV-137

Before REAVLEY, JOLLY, and OWEN, Circuit Judges.

PER CURIAM:*

Gregory Joy, federal prisoner # 34589-177, pleaded guilty to possessing

less than 50 grams of crack cocaine with intent to distribute it, and aiding and

abetting. The plea agreement contained a provision waiving his right to

challenge his conviction or sentence on appeal or in a collateral proceeding,

though he reserved the right to appeal a sentence exceeding the statutory

maximum or based on an error of arithmetic, to challenge the voluntariness of

United States Court of Appeals

Fifth Circuit

F I L E D

November 12, 2009

Charles R. Fulbruge III

Clerk
No. 08-10438

2

the plea or the appeal waiver, and to bring a claim of ineffective assistance of

counsel. He was sentenced to a prison term of 200 months, which was within the

guidelines range.

Joy did not file a notice of appeal, but he instead sought to vacate his

sentence pursuant to 28 U.S.C. § 2255. The district court denied relief and

declined to issue a certificate of appealability. This court, however, granted Joy’s

request for a certificate of appealability on the issues whether his counsel

“rendered ineffective assistance by failing to file a notice of appeal on Joy’s

behalf and whether Joy was entitled to an evidentiary hearing on this claim.”

After Joy filed his appellant brief, we granted the Government’s motion to

remand the case to the district court for an evidentiary hearing. Following the

evidentiary hearing, the case was returned to this court and briefing resumed.

The Government has now filed its appellee brief, and Joy has not filed a reply

brief.

At the evidentiary hearing, Joy and his former attorney gave conflicting

accounts about whether Joy asked the lawyer to file a notice of appeal.

According to Joy, in the courtroom after he was sentenced, he told his attorney

that he would like an appeal and his attorney responded that he would get back

to Joy. Joy, however, admitted that although he knew that he had only a 10-day

window to file a notice of appeal, he did not attempt to contact his lawyer for

several months and that he did not tell his family about his wish to appeal. His

attorney testified that immediately after sentencing, he and Joy discussed the

possibility of an appeal and that he advised against bringing an appeal; he did

not remember Joy asking for an appeal and that, if Joy had asked for an appeal,

counsel would have perfected it. The magistrate judge found that Joy did not

establish by a preponderance of the evidence that he instructed counsel to

appeal. The district court adopted the magistrate judge’s findings.

We review factual findings for clear error. United States v. Cavitt, 550

F.3d 430, 435 (5th Cir. 2008); see also United States v. Mays, 466 F.3d 335, 342
No. 08-10438

3

(5th Cir. 2006). On the record before the magistrate judge, the finding that the

preponderance of the evidence did not support Joy’s contention that he

instructed his lawyer to file a notice of appeal is plausible and, thus, is not

clearly erroneous. See United States v. London, 568 F.3d 553, 561 (5th Cir.)

petition for cert. filed (Aug. 11, 2009) (No. 09-5844). Because Joy has not

established that he directed his lawyer to file a notice of appeal, he cannot

succeed on his claim that counsel was ineffective for failing to carry out the

request. Cf. Roe v. Flores-Ortega, 528 U.S. 470, 477, 486 (2000) (explaining that

counsel’s failure to abide by his client’s request to file a notice of appeal

constitutes ineffective assistance even without a showing that the appeal would

be meritorious). Nor was it clearly erroneous for the magistrate judge to decline

to find that Joy’s attorney failed to consult with him given his attorney’s

testimony that he discussed the possibility of an appeal with Joy and had

advised against such an appeal. Cf. id. at 480.

The district court’s judgment denying Joy’s motion to vacate his sentence

is AFFIRMED.